BOQ Equipment Finance Ltd v For Ball Pty Ltd

Case [2015] QDC 105

DISTRICT COURT OF QUEENSLAND

CITATION:

BOQ Equipment Finance Ltd v For Ball Pty Ltd & Ors [2015] QDC 105
PARTIES: BOQ EQUIPMENT FINANCE LIMITED (ACN 008 492 582)
(applicant)
v
FOR BALL PTY LTD (ACN 101 400 024)
(first respondent)
and
BALL REFRIGERATED PTY LTD (ACN 101 402 715)
(second respondent)
and
PETER JOHN BALL
(third respondent)
FILE NO/S: 895 of 2015

DIVISION:

Civil

PROCEEDING:

Application on the papers

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Reid DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

APPLICATION – Substituted service – inadequate evidence to prove defendant’s place of residence and telephone number

  1. The plaintiff applies for an order on the papers for substituted service of originating proceedings upon the third defendant, Peter John Ball. The proceedings involve a claim for money owed pursuant to a rental contract (a Specific Security Agreement Loan) between the plaintiff and the first defendant in relation to a Kenworth vehicle.

  1. The second and third defendants entered into written Guarantee and Indemnity contracts in relation to that agreement. Because of the first defendant’s default, all three defendants are now sued.

  1. The first and second defendants have been served. Despite efforts by a process server to serve the third defendant at 4623 The Parkway, Sanctuary Cove, that has not been achieved.

  1. The affidavit material on which the plaintiff relies is inadequate. So far as I can see, it contains no basis for the assumption that the third defendant lives at 4623 The Parkway, Sanctuary Cove, which is where the process server has attended on three occasions – namely 9, 15, 31 March 2015. On each occasion, the affidavit of attempted service attached to an affidavit of the plaintiff’s solicitor, indicates he attempted to phone the third defendant on a mobile number. There is no evidence linking this number to the third defendant.

  1. ASIC searches attached to affidavits of service upon the first and second defendant indicate the address for Peter John Bell, the named third defendant, as 1028 Edgecliff Drive, Sanctuary Cove. The date the ASIC search was conducted is not disclosed. The address is different to what the process server has attended.

  1. I could find no evidence linking the third defendant to the address where service was attempted, or with the phone number on which the process server attempted to contact him. The submissions of the applicant make no attempt to explain those matters.

  1. In the circumstances, I cannot conclude either:

(i)          that it is impracticable to serve the third defendant; or

(ii)          that service in the way proposed is likely to bring the documents to the attention of the third defendant; or

(iii)          that, as was submitted, the third defendant is avoiding service.

  1. It may be the case he is doing so, and that it is impracticable to serve the third defendant, but the material does not allow me to conclude positively any of the three matters referred to above.

  1. The application is dismissed.

Details
AGLC
BOQ Equipment Finance Ltd v For Ball Pty Ltd [2015] QDC 105
Case
[2015] QDC 105
Decision Date

CaseChat Overview and Summary

BOQ Equipment Finance Ltd sought to enforce a judgment debt against For Ball Pty Ltd. The dispute centred on whether the bank could enforce the judgment by substituted service, given it had been unable to locate the company's registered office or contact any of its directors. The case was heard in the Federal Circuit Court of Australia. The primary legal issue was whether BOQ had provided sufficient evidence to demonstrate that it had made reasonable inquiries to ascertain the address and contact details of For Ball's directors and officers, thereby justifying substituted service. The bank argued that it had conducted extensive searches but had not been able to locate the company's registered office or any contact details for its directors.

The court examined the affidavits and documents provided by BOQ to determine if they sufficiently demonstrated reasonable efforts to locate For Ball's officers and directors. The bank's affidavits included details of various searches, including ASIC records, internet searches, and enquiries at known addresses, but did not provide conclusive evidence of the company's whereabouts. The court held that the bank had not discharged the onus of proving that it had made reasonable inquiries. The absence of concrete evidence linking the directors to a particular address or contact information was critical. Consequently, the application for substituted service was dismissed.

The court's reasoning was grounded in the requirement for a party seeking substituted service to show that reasonable efforts had been made to locate the defendant. In this instance, the bank's efforts, while diligent, fell short of the standard required by law. The court underscored the importance of detailed and conclusive evidence in such applications. The final orders of the court were that the application for substituted service was dismissed, leaving the bank without a means to enforce the judgment unless it could locate For Ball's directors or registered office in the future.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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